Witnesses at Investigative Interviews, Quirky Question # 84

Quirky Question # 84:

We periodically have to investigate alleged wrongful conduct by our employees.  Some of these employees want to bring another person with them to the investigative interview.  Over the years, I’ve received conflicting reports about whether we have to allow this practice, or not.  One employee who was insisting on having someone with her during the investigation told me that even though she is not a union employee, she has “Weingarten” rights.  What’s that?  Do I have to allow her to bring someone with her to the interview?

Dorsey’s Analysis:

Like your company, many employers conducting investigations receive requests from their employees to have another person present at investigative interviews.  Sometimes that person is a co-worker, sometimes that person is a friend or family member, and sometimes the employee asks to have a lawyer accompany him/her to the interview.  As I’ve touched on in other Blog analyses, subject to the qualifications described below, all of these requests should be rejected.  You do not want other employees sitting in on the investigative interview.  You don’t want non-employees sitting in.  And, you certainly don’t want attorneys participating in the interview.  I’ll return to each of those contexts below.

You specifically inquired, however, about “Weingarten” rights and what that means.  The fact that you are unfamiliar with the term suggests to me that your work force in not unionized.  (I draw that inference only because the concept of Weingarten rights emanates from a National Labor Relations Board (NLRB) case and likely would have come up before if your workforce comprised union employees.)

In a setting involving unionized employees, employees possess contractual rights that the employer must respect during the course of the investigation.  Unlike private employees in a non-unionized environment, a union member may be entitled to have a union representative present during an interview where the interview may lead to disciplinary action.   This right to have a union representative present in interview contexts where the interviewee is potentially subject to disciplinary action is referred to as a “Weingarten” right and is derived from the case of  NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

So, the first question to explore is whether the employee being interviewed is subject to a collective bargaining agreement.  If the employee is a union employee, the next question to explore is whether the person being interviewed may be disciplined as a consequence of the interview.   If the answer to each inquiry is affirmative, the interviewee has the right to have a union representative present during the interview.

From a practical perspective, of course, it is often difficult to predict whether an investigative interview will reveal facts that could lead to the employee’s discipline.  Before the interview commences, you may not know what information is likely to be disclosed and what the interviewee’s role may have been in the problematic conduct.  For that reason, some employers ensure that a union representative is invited to participate in any investigative interview of a union employee.

Further, union employees are entitled to meet with a union representative prior to being questioned about their alleged workplace misconduct.  In U.S. Postal Service v. NLRB, the employer was investigating an employee for alleged misconduct and, pursuant to Weingarten, the employer permitted the employee to have a union representative present during questioning.  The employer refused, however, to allow the employee to consult with his representative prior to the meeting.  The NLRB held that such a refusal constituted an unfair labor practice in violation of the NLRA.

As this analysis reveals, a union employee may have a right to have a union representative present at an investigative interview.  Further, the employee may have a right to meet with the union representative prior to the investigative interview.  Despite those rights, however, the interviewer need not cede control of the interview to the union representative, letting him/her take over the interview, begin questioning the interviewee, or otherwise engaging in any behaviors that interrupt or, worse, disrupt, the interview process.  If this situation occurs, seek cooperation from the interviewee and the representative.  If problems persist, terminate the interview and resume it at a later date under more controlled circumstances.

If you are not dealing with union employees, Weingarten rights do not apply.  Although there was some confusion about this issue for a period of time, at least for now this debate appears to be over.  See, e.g., NLRB vs. IBM Corporation, 341 NLRB No. 148 (June 9, 2004) (NLRB decided private employees in a non-union setting do not have the right to have a co-worker present at an investigatory interview, even if the interview in question might lead to disciplinary action). In short, for non-union employees, you do not have to allow others to accompany your employee to an investigative interview. Moreover, if you were to allow someone else to attend, you are exposing yourself and your company to unnecessary potential grief.

Your ability to control the interview itself, and the information revealed during the course of the interview, would diminish further if a non-employee were allowed to sit in on the investigative interview.  Whereas you can discipline a co-employee who breaches the confidentiality of the interview process, you have relatively little recourse against a non-employee observer to the interview.  If that person disclosed the interview contents to others, what recourse would you really have?  If he/she wrote an interesting article about the nature and content of the interview and posted it on the Internet, what would you be able to do?  If that person shared critical data (perhaps just recounting questions you posed) to the target of the interview, what would your options be?

Similarly, the presence of an attorney at an investigative interview will complicate your life.   What role will that individual play?  Who is the attorney representing?  Will he/she have an attorney-client relationship with the interviewee?  If the two of them step out into the hall to discuss a question you posed, will you be able to ascertain what they discussed?  If he/she instructs the person you are interviewing not to answer, what will you do?  If objections are asserted to your inquiries on the basis of relevance, hearsay, foundation or other standard objections that might be asserted in a judicial proceeding, how will you respond?  Will the presence of an attorney on behalf of the witness lead you to conclude that you need a lawyer present on behalf of the company?  What requests, if any, will you make of the attorney with respect to the confidentiality of the interview process?   Even if the attorney-witness pledged to maintain the confidentiality of the interview, how would you ever enforce that promise?  If the lawyer later established an attorney-client relationship with the target of your investigation, how could you restrict the information shared with that individual?  How would you ever discover what was disclosed?  As these, and many other potential questions reveal, allowing an attorney to participate in an investigative interview as a witness for the interviewee potentially raises a variety of difficult problems.

In sum, with respect to the issue of witnesses at investigative interviews, different standards apply to union and non-union employees.  Although a union employee may have the right to have a witness present at the investigative interview, that is not true for non-unionized employees.  Moreover, there are a variety of compelling reasons why you should not allow interviewees to bring third-party witnesses with them to the investigative interview.

If you advise an interviewee that he/she may not be accompanied by another person during the investigative interview and the interviewee therefore refuses to participate, a different set of questions is raised.  Since I’ve addressed some of these issues in a prior Blog analysis, I won’t repeat them here.  (If you’re interested, simply scroll down on the “View By Topic” bar to the left and click on “Investigations.”)

Presumably, the reason you are conducting the investigation is that you believe some wrongful conduct has occurred.  You do not want to reveal that information to a third-party witness, even if he/she is also an employee.  Your standard admonitions about confidentiality and privacy will lose considerable impact if another person is allowed to sit in on the interview.   Further, there are a variety of circumstances where the purpose of your investigation could be thwarted, or partially undermined, if you allowed another employee to sit in.  For example, what if the employee asked to sit in on the interview was the target of the investigation, the very individual you suspected of wrongdoing?  The questions you posed will be quite revealing to that individual.   Even if the third-party participant is not the target of the investigation, what if he/she was a friend of the target?  Would that person’s presence, even if he/she were ostensibly brought in to support the interviewee, affect the content of the answers provided?

As this analysis reveals, a union employee may have a right to have a union representative present at an investigative interview.  Further, the employee may have a right to meet with the union representative prior to the investigative interview.  Despite those rights, however, the interviewer need not cede control of the interview to the union representative, letting him/her take over the interview, begin questioning the interviewee, or otherwise engaging in any behaviors that interrupt or, worse, disrupt, the interview process.  If this situation occurs, seek cooperation from the interviewee and the representative.  If problems persist, terminate the interview and resume it at a later date under more controlled circumstances.

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